RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 1474 OF 2011
(Against the judgment/order dated 19-07-2011 in Complaint
Case No.493/2010 of the District Consumer Forum, G B Nagar)
Kasturi Devi Munshi lal Jain Mahila –
Evam Shishu Charitable Hospital, Jewar
Gautam Budh Nagar
Through its Managing Trustee
Sri Vijendra Kumar Jain
...Appellant/Opposite Party
Vs.
Mukhthayar Singh
R/o Mohalla Vaish Khatik, Jewar
District Gautam Budh Nagar
...Respondent/Complainant
AND
APPEAL NO. 1526 OF 2011
(Against the judgment/order dated 19-07-2011 in Complaint
Case No.493/2010 of the District Consumer Forum, G B Nagar)
Mukhthayar Singh
R/o Mohalla Vaish Khatik, Jewar
District Gautam Budh Nagar
...Appellant/Complainant
Vs.
Kasturi Devi Munshi lal Jain Mahila –
Evam Shishu Charitable Hospital,
Kasba Jewar
District Gautam Budh Nagar, U.P.
Through Manager
...Respondent/Opposite Party
BEFORE:
HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON’BLE MR. R C CHAUDHARY, MEMBER
HON’BLE MR. SANJAI KUMAR, MEMBER
For the Appellant/O.P. : Sri V S Bisaria, Advocate.
For the Appellant/Complainant : Sri Alok Kumar Singh, Advocate.
Dated : 07-11-2014
JUDGMENT
PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT
Both the aforesaid appeal have been filed under Section 15 of the
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Consumer Protection Act, 1986 against the same judgment and order dated 19-07-2011 passed by District Consumer Forum, Gautam Budh Nagar in Complaint Case No. 493/2010 conjointly, hence they are being taken up together for decision.
Whereas Appeal No.1474/2011 has been filed by Kasturi Devi Munshi Lal Jain Mahila Evam Shishu Charitable Hospital for setting aside of the impugned judgment, the other Appeal No. 1526/2011 has been preferred by Mukhthayar Singh for enhancement of the compensation.
As per impugned order the opposite party has been directed to pay a sum of Rs.5,00,000/- as compensation to the complainant in respect to the medical negligence committed by the opposite party in the treatment of the complainant’s son alongwith a further sum of Rs.25,000/- for mental tension and a sum of Rs.5,000/- as litigation charges to be paid by the opposite party to the complainant.
We have heard Sri Alok Kumar Singh, learned Counsel for the complainant and Sri V S Bisaria, learned Counsel for the opposite party.
As per contention of the learned Counsel for the complainant, the complaint was filed against the opposite party for compensation on account of negligence of the opposite party in providing the treatment to the complainant’s son wherein it is alleged that the complainant’s son was suffering from fever and vomiting, for which the opposite party’s doctor Dr. S K Ravi was consulted, who had advised for pathological test and on the basis of pathological test, he diagnosed that the complainant’s son was suffering from viral fever. The doctor of the hospital wrote some medicines of viral fever but those medicines could not response and the condition of the complainant’s son become worst thereby deteriorating day by day. The doctor of the hospital re-advised the same pathological test but dengue test was not advised, while all symptoms were indicating the dengue fever. The opposite party i.e. the hospital could not provide MBBS, MD doctor to diagnose rightly. It shows a total negligence and careless attitude and deficiency in service by the opposite party towards the complainant. The complainant got his son discharged in the night of 30-09-2010 from the opposite party hospital and on the same day he was admitted in Guru Nanak Hospital but since the condition of the patient happened so much serious that the Guru Nanak Hospital referred him to admit for higher
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hospital. Thereafter the complainant’s son was admitted in Fortis Escorts Hospital on 01-10-2010 but the life of the patient could not be saved. The Fortis Escorts Hospital diagnosed Dengue to the son of the complainant, who was died from Dengue. Due to lack of skill of the opposite party’s doctor the complainant’s son was died which is a clear cut case of medical negligence of the opposite party for which the complainant filed the complaint for compensation to the tune of Rs.19,50,000/- towards compensation and expenses incurred and the mental shock to the complainant. It is further contended that it is pertinent to state that Res Ipsa Locquitur i.e. thing speaks for itself is applicable in this case and, therefore, the expert opinion was not required in such case because prima facie it is seen that the medical negligence has been committed by the opposite party. The Hon’ble Supreme Court has observed that the expert opinion is required only in complicated cases. The citation is III(2010) CPJ-1 (SC). The Hon’ble National Commission has also passed several decisions in this regard, for example 2012(4) CPR 461(NC) and 2008 (II) CPJ 93 (NC). Before the District Consumer Forum the opposite party had not filed the relevant documents pertaining to the treatment of the complainant’s son while the complainant proved his case before the District Consumer Forum but the District Consumer Forum has not allowed the complaint case in toto and committed error thereby allowing the case partly in favour of the complainant and, therefore, in this regard the impugned order is liable to be modified atlest upto this extent that the interest @ 18% per annum from 01-10-2010 till the realization of the amount should have been awarded, for which the complainant has also filed the appeal which is liable to be allowed and the appeal filed by the opposite party is liable to be dismissed.
The learned Counsel for the opposite party contended that the complainant had brought his son Aman in the hospital of the opposite party for the treatment of fever and vomiting on 27-09-2010 as outdoor patient. The pathology test was conducted in the hospital wherein the report shows the parasites – “Negative”. Dr. S V Ravi on the basis of pathology report prescribed medicines for viral fever. On 30-09-2010 the complainant’s son was again brought in the hospital as the condition of the patient was not improving. The pathology test was again advised, which the complainant got done independently from the private pathology lab namely Om
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Pathology Lab where also the report shows the Malaria Parasites – “Negative”. The complainant got his son discharged in the night of 30-09-2010 and filed the complaint against the opposite party on 12-12-2010 alleging the deficiency in service on the part of the opposite party and the District Consumer Forum without any expert opinion awarded a sum of Rs.5,00,000/- with Rs.25,000/- as compensation against the opposite party. The complainant had also filed an application under Section 156(3) CrPC before the Judicial Magistrate Jewar, G. B. Nagar against the opposite party alleging the medical negligence on the part of the opposite party. In that case the court had directed the Chief Medical Officer, G B Nagar vide its order dated 23-03-2011 to constitute a bench/team of competent doctors and to brought the report on the matter. The Chief Medical Officer, G B Nagar vide its letter dated 05-09-2011 submitted his report agreeing with the opinion of the panel doctors consisting of Dr. Renu Agarwal and Dr. Abdul Salam. The medical expert opinion held that there was no medical negligence of the opposite party in handling of the case of the son of the complainant and on that basis the Judicial Magistrate rejected the case vide order dated 19-09-2011 against the opposite party. In the light of the expert opinion and the settled case law of Hon’ble Apex Court in this regard, the complaint was not maintainable and as such the order passed by the District Consumer Forum is liable to be set aside.
It is further submitted on behalf of the opposite party that the complainant vide his application dated 11-02-2014 got released of deposit amount of Rs.1,50,000/- deposited before the District Consumer Forum by the opposite party in compliance of order dated 24-08-2011 passed by this Commission, on the ground of the marriage of the daughter of the complainant while there was no marriage of the daughter of the complainant and thereby filing a forged affidavit the amount has been withdrawn while the marriage of the daughter of the complainant had already solemnized with Rajesh Kumar S/o Vijay Kumar R/o Trilok Puri, Delhi which is evident from the marriage card of the complainant’s son Ankit and voter list of Block-5, Trilok Puri, Delhi, where the daughter of complainant resides after marriage with Rajesh Kumar. Since as per expert medical opinion on record there had been no medical negligence on the part of the opposite party and the complainant played a fraud with this
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Commission for getting released the deposited amount, the appeal filed by the opposite party not only deserves to be allowed rather the amount got released by the complainant stands to be recovered from the complainant.
After hearing of both the parties and perusal of the impugned judgment and order, the entire facts and circumstances of this case, there is no dispute on this point that the death of the complainant’s son was occurred due to Dengue, diagnosed in Fortis Escorts Hospital, which could not be diagnosed by the opposite party but whether the non diagnosis state of affair is the negligent part of the opposite party in this case is a fact to be ascertained in this matter. The Hon’ble NCDRC, New Delhi in the case of Badam Agaiah and others V/s Dr. L Vidya Sagar Reddy reported in III(2014) CPJ 141 (NC) has held in a case of medical negligence pertaining to Cerebral Malaria on the basis of wrong diagnosis and the death of the patient that there may be error of judgment in reaching correct conclusion about proper diagnosis but for failure to detect that it was case of cerebral malaria, it does not sound worthwhile to charge doctor with negligence or deficiency in service. In the case of Jacob Mathew V/s State of Punjab and another reported in III(2005) CCR 9 (SC), the Hon’ble Supreme Court has held as follows:-
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, para 35):
35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted
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it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary case.
The above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence.
In the present case, applying the tests stated above, it is not established that the doctor or the hospital was found negligent in attending the patient properly or administering treatment at proper time.
In the light of the law as aforesaid we have perused the facts on record that there had been no diagnosis on the part of the opposite party in respect to medical treatment of the complainant’s son that the case of the complainant’s son was of Dengue but since the pathological report nowhere indicated in this regard, therefore, it was not possible for the opposite party to diagnose that there was the disease named Dengue to the complainant’s son. The pathological report on record shows that parasites were found negative on 27-09-2010 and again the malaria parasites were found negative on 30-09-2010, therefore, how a doctor could diagnose the case of Dengue as per alleged negligence by the complainant that the treatment of Dengue could have been done by the opposite party. A perusal of the pathological report shows that the test pertaining to Haemoglobin, Total RBC, Total WBCs, Neutrophils, Lymphocytes, Eosinophils, Parasites were got done on 27-09-2010 in the laboratory of the opposite party. In another pathology named Om Pathology Lab, again on 30-09-2010, test pertaining to Hb, TLC, Neutrophils, Lymphocytes, Eosinophils and Malaria Parasite were got done but none of the test revealed Malaria positive rather both the tests demonstrated the Malaria Parasites in negative. In such circumstances how a doctor can be held negligent in the absence of any Medical Expert opinion that Dengue was advisable by the opposite party. However, on 01-10-2010 when the patient was taken to Guru Nanak Hospital, the patient was diagnosed with H/O Vomiting, BP not recordable and Pulse not feelable and was referred to higher centre for further management at 2.15 a.m. on 01-10-2010 and the death of the patient was occurred on 01-10-2010 at 11.15 a.m. in Fortis Esctors Hospital thereby diagnosing the Dengue Shock Syndrome. No doubt the case had been of Dengue resulting the death of the son of the complainant but at what stage the Dengue
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developed, it could have not been ascertained by opposite party in the light of pathology reports on record and therefore it cannot not be a case of medical negligence of the opposite party by whom the treatment was given thereby finding the parasites negative. Since the pathology report of the opposite party’s lab was further confirmed even by the Om Pathology Lab on 30-09-2010 thereby finding the Malaria Parasites negative, the opposite party may not be held negligent in the eyes of the law as is aforesaid. More so there is no medical expert opinion on record to show that there had been any negligence on the part of the opposite party rather the medical expert opinion of the Chief Medical Officer concerned is on record showing thereby that there had been no medical negligence on the part of the opposite party. In such circumstances, we are not inclined to endorse the findings of the District Consumer Forum and it is unfortunate for the complainant in respect to the death of the son of the complainant which may be said in the hands of the God and the opposite party cannot be held responsible for it there being no medical expert opinion for medical negligence of the opposite party. Hence the appeal filed by the opposite party deserves to be allowed and the appeal filed by the complainant deserves to be dismissed.
ORDER
The Appeal No. 1474/2011filed by the opposite party is hereby allowed and Appeal No.1526/2011 filed by the complainant is hereby dismissed. The impugned order dated 19-07-2011 is hereby set aside.
The original judgment shall be placed on the record of Appeal No. 1474/2011 with its copy to be laid on the other Appeal No. 1526/2011.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
( R C CHAUDHARY )
MEMBER
( SANJAI KUMAR )
MEMBER
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